IN RE the MARRIAGE OF Joseph Cody STOCKWELL, Appellee, and Jennifer Lynn DEES, Appellant.
[Copyrighted Material Omitted]
and County of Denver District Court No. 12DR1367, Honorable
Catherine A. Lemon, Judge
Cody Stockwell, Pro Se
Jennifer Lynn Dees, Pro Se
1] In this proceeding concerning the allocation of
parental responsibilities (APR) for L.D-S., Jennifer Lynn
Dees, the childs mother, appeals the district courts order
denying her motion to vacate a 2013 order giving majority
parenting time to Joseph Cody Stockwell, the childs legal
but not biological father. Dees contends that the court erred
because it issued the APR order without first inquiring into
the childs possible Indian heritage as required by the
Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § § 1901
to 1963 (2018). Dees is right. In agreeing with her, we
clarify that (1) a legal father under Colorado law is not
necessarily a "parent" for purposes of ICWA and (2)
an APR to a legal father who does not qualify as a
"parent" under ICWA is a "child custody
proceeding" under ICWA.
2] Because the APR to Stockwell here constituted a
child custody proceeding and the court did not comply with
ICWA, we reverse the order denying Deess motion and remand
for further proceedings.
Factual and Procedural History
3] L.D-S. was born during the marriage between Dees
and Stockwell. That marriage has since been dissolved.
Although Stockwell is not L.D-S.s biological father, he was
declared his legal father under the paternity presumption in
section 19-4-105(1)(a), C.R.S. 2018. On October 2013, the
district court entered an APR order that named Stockwell the
primary residential parent for L.D-S. and limited Deess
parenting time to weekends. Over the next few years, the
court expanded Deess parenting time to include holidays,
school breaks, and two weeks of summer vacation.
4] In 2015, Dees asked the court to set aside the
October 2013 APR order. She alleged that she had obtained a
DNA test result from L.D-S.s biological father that would
rebut Stockwells paternity presumption. A magistrate denied
her motion, and the district court adopted the magistrates
5] In 2017, Dees filed a pro se motion titled
"Motion for 25 U.S.C. 1914 ICWA Violations,"
arguing that federal law required L.D-S. to be returned to
her care (hereinafter, ICWA motion). She attached to the ICWA
motion various orders (including the October 2013 APR order)
and a letter asking the district court to invalidate all
parenting orders, return L.D-S. to her custody, and comply
with ICWA. She asserted in her letter that L.D-S. was
"Choctaw and Wailaki on my side only" and that the
APR to Stockwell was a "foster care placement." The
court denied the motion as untimely.
6] ICWA is intended to protect and preserve Indian
tribes and their resources, and to protect Indian children
who are members of or are eligible for membership in an
Indian tribe. 25 U.S.C. § 1901(2), (3) (2018); People in
Interest of M.V., 2018 COA 163, ¶ 10, 432 P.3d 628. ICWA
recognizes that Indian tribes have a separate interest in
Indian children that is equivalent to, but distinct from,
parental interests. M.V., ¶ 10. Thus, in a proceeding in
which ICWA may apply, tribes must have a meaningful
opportunity to participate in determining whether a child who
is a subject of the proceeding is an Indian child and to be
heard on the issue of the applicability of ICWA. B.H. v.
People in Interest of X.H., 138 P.3d 299, 303 (Colo.
7] ICWA applies when an Indian child is the subject
of a "child custody proceeding," which ...